Anonymization error: Free access to German judgments saved for the time being

Contents

If a German court anonymizes a decision inadequately and publishes it, third parties should not be liable if they make the decision accessible – at least if they do so for journalistic purposes. This was decided by the Hamburg Regional Court in a case concerning the future of the free accessibility of court decisions. The defendant was the operator of the donation-financed database Openjur, which has been collecting published German legal decisions since 2009 and – in contrast to commercial providers – makes them available online free of charge.

Openjur now contains hundreds of thousands of court decisions. A decision from May 2022 contained in the data treasure trove was incompletely anonymized by the Berlin court. This allowed the world to find out that a certain lawyer was in financial difficulties and that enforcement proceedings were being taken against him. After just under a year, the person concerned noticed this. He complained to Openjur, which removed the name within 20 minutes.

Nevertheless, the lawyer sued the operating association Openjur e.V. for damages and injunctive relief, citing both the General Data Protection Regulation (GDPR) and German civil law. The proceedings threaten Openjur's existence, as the association cannot possibly examine every decision published by courts for errors made by the court. The first-instance decision of the Hamburg Regional Court provides some relief: Openjur is therefore not liable for the anonymization error of the Berlin court (Hamburg Regional Court, judgment of 9 May 2025, Ref. 324 O 278/23).

Alleged contradiction...

The GDPR allows exceptions for journalistic, artistic or literary purposes "if this is necessary to reconcile the right to the protection of personal data with freedom of expression and information." Openjur is thus defending itself against the accusation that it has violated the GDPR.

Against the civil claim for damages, Openjur argues that it is not at fault, as it merely copied the court text and posted it online unchanged. The fault lies with the Berlin court. The plaintiff saw a contradiction in this: Openjur could not be acting in a journalistic capacity if it merely copied texts.

...is not one

However, the LG Hamburg pointed out that the recitals of the GDPR themselves require the term journalism to be interpreted broadly. Openjur is indeed engaged in editorial work: not in the sense of editing court decisions, but with regard to their selection. Openjur requests decisions from German courts on an almost daily basis; the association also conducts court proceedings to force the release of decisions free of charge. Openjur indexes decisions and drafts its own guiding principles. Those responsible choose which decisions provided by third parties they publish and what they highlight on the homepage and in social networks. Due to the journalism exception, the court rejects claims under the GDPR. It also added that the exception for scientific purposes should also apply.

There was also no civil law recourse for the plaintiff lawyer at Hamburg Regional Court. Although the publication had violated his general right of personality and could damage his career, Openjur had safeguarded legitimate interests and thus acted justifiably: "According to the case law of the Federal Court of Justice, the justification ground of Section 193 of the German Criminal Code is taken into account as an expression of the fundamental right of freedom of expression when examining a violation of the general right of personality and is recognized with regard to the function of the press in a democratic state" (BGH VI ZR 175/58).

Courts are a so-called privileged source, which "may be given increased trust". "As long as the defendant had no concrete doubts that publishing a decision in its database in the identical form as it had already been published in the case law database of the state of Berlin would violate the rights of third parties, the defendant acted justifiably and was not subject to any obligation to conduct subsequent research." Openjur only had to entertain doubts about the legality of the publication when the plaintiff pointed it out, and then Openjur immediately removed the name.

The plaintiff must bear the costs of the proceedings, but can appeal. This is not the end of the matter for Openjur. The association is collecting donations to defend itself against the lawsuit.

"Anonymization"

The German practice of anonymization is particularly strict in international comparison. In many countries, decisions are only anonymized in exceptional cases, and those affected must also expressly request and justify this at the EU court. Austria also anonymizes, but unlike German courts, at least names the lawyers who represented the parties in court in the legal information system's collection of case law. This supports legal practice.

Incidentally, this is not anonymization in the sense of data protection law. Truly anonymized decisions, where no one can identify the persons involved, would be largely useless. After all, information on the facts of the case is important in order to make the decision comprehensible. And the facts of the case allow those in the know to draw conclusions about the parties involved. Instead, German courts are required to strike a balance between transparent justice and personal rights.

(ds)